In November 2020, Proposition 207 also known as the “Smart and Safe Arizona Act” passed. The proposition presented new provisions regarding the legalization of recreational marijuana. Proposition 207, as regulated by the Arizona Department of Health, legalizes the possession and use of recreational marijuana for persons who are at least 21 years of age. Items like the licensing of retail marijuana locations and cultivation and production facilities are regulated under Proposition 207.
Additionally, individuals will now be permitted to grow a maximum of six marijuana plants inside of their homes, as long as the plants are in locked enclosed areas and hidden from public view. Lastly, the proposition also allows anyone convicted of certain marijuana-related offenses such as possession, consumption, cultivation, and transportation to petition for the expungement of their criminal records.
Legal sales of recreational marijuana are expected to begin in March 2021.
As with any proposition, there are proponents and opponents of this new law. Those in favor of the proposition largely support it because it will include a 16 percent tax on marijuana sales, as well as additional privilege and use taxes. Revenues from these taxes will be divided between community college districts, police and fire departments, Arizona’s Highway User Revenue Fund, and a newly-formed Justice Reinvestment Fund.
While this additional revenue is a definite benefit to various communities, what is not considered is that employers may have difficulty navigating their work environments under the new regulations. For example, the ability to take adverse action against employees whose performance, efficiency and/or workplace safety adherence has been hindered by marijuana use, especially in positions that work with sensitive populations, such as children or the elderly, may be limited.
What Proposition 207 Means For Employers?
Since many employers have varying requirements for hiring and staff retention that include drug testing and background checks, this proposition brings up some new questions about the best way for employers to proceed.
Below we discuss some core areas that Proposition 207 may influence when it comes to managing your workplace.
Disciplinary Action
Generally, under common at-will employment laws, an employer is permitted to terminate, suspend, or otherwise discipline any employee who breaches the employer’s drug and alcohol policy.
Proposition 207 specifically states that it will not restrict the rights of employers to continue to enforce such policies.
Additionally, employers are not required to accommodate an employee’s recreational marijuana use or possession. Medical marijuana, however, still requires some employer concessions.
Drug Testing Policy
The Arizona Drug Testing of Employees Act, which precedes Proposition 207, insulates employers from liability in various ways.
In essence, Proposition 207 will not change the fact that, in light of a positive drug test or an unwillingness to submit to a drug test in violation of an employer’s written policy, the employer may use such a violation as a basis to refuse to hire a prospective employee and terminate an existing employee.
Additionally, employers are still shielded from liability for actions taken in good faith against employees who present a positive drug test.
Discrimination and the Arizona Medical Marijuana Act (AMMA)
Prop 207 will not abolish employer requirements under Arizona’s existing medical marijuana program under the AMMA. The AMMA prohibits an employer from discriminating against an employee based on 1) their status as a medical marijuana cardholder or 2) a cardholder’s positive drug test due to an existing medical condition.
The AMMA states that “unless failure to do so would cause an employer to lose a monetary or licensing related benefit under federal law or regulations, an employer may not discriminate against a person by imposing any condition of employment or otherwise penalizing a person based on their status as a cardholder.”
Even though the AMMA protects qualified employees, an employer should not allow marijuana use to adversely impact their business. When the employee is impaired by marijuana at the work site or during the hours of employment, as evidenced by negligence, incoordination or slurred speech, the employer should take action.
Questions to consider before acting are:
– Did this employee use or possess marijuana (in any form) at work or while the employee was working?
– Was this employee impaired by the marijuana while working?
Prior to termination, an employer should consider discussing accommodations with the employee, for example, reassigning that employee to a different position or possibly placing the employee on leave until he or she can properly perform the job.
Off-Duty Marijuana Use
In states where the use of recreational marijuana has been legalized, the trend has been to abolish drug testing that may incur results from an employee’s off-duty marijuana activity. This is primarily because it is difficult to determine with testing when the drug use would have occurred. As such, absent on the job impairment, random employee drug tests may not be financially worth it, especially for industries that don’t serve sensitive populations.
Employees Reliant on Immigration Sponsorship
Despite Arizona’s legalization of recreational marijuana at the state level, marijuana remains prohibited under federal law, and federal law is the primary authority for immigration purposes. Employers who utilize or sponsor non-citizen employees should be aware that if a non-citizen is found to be using or possessing marijuana by a federal official, their green card, work visa or another immigration status may be delayed or revoked.
In conclusion, employees with medical marijuana licenses have been known to initiate legal action against employers for claims that their drug policies were medically discriminatory. Now, the inclusion of legalized recreational use highlights why employers must be cognizant of whether an employee’s underlying medical condition or recreational use is protected or allowable under state or federal laws.
Specifically, employers should ensure employment decisions made on the basis of violation of the company drug policy do not: 1) effectively discriminate against an underlying health condition that use of marijuana is intended to treat, or 2) implement more stringent standards than legally allowed.
Employers should seek expert legal advice regarding their drug use and testing policies to ensure they are appropriate and avoid liability for violation of Proposition 207, AMMA, or the Arizona Civil Rights Act.
Contact Counxel Legal Firm
If you would like to talk to an attorney about Arizona’s Proposition 207, contact us at (480) 744-6621 or at request@counxel.com. Don’t forget to check out the good things that others are saying about the services they received from Timothy Coons on Google.
This article is intended for informational purposes only and does not constitute legal advice for your specific situation. Use of and access to this article does not create an attorney-client relationship between you and Counxel Legal Firm. Please contact request@counxel.com or (480) 744-6621 to request specific information for your situation.
*Conveniently located off the 101 Freeway and the US 60 in the middle of Phoenix, Scottsdale, Tempe, Chandler, Gilbert, Mesa, and Queen Creek!
